DPIC News

As Support for Death Penalty Falls in Utah, New Study Again Says Life Without Parole Costs Less

An analysis by the Utah Commission on Criminal and Juvenile Justice of the cost of capital punishment has found that cases in which prosecutors seek the death penalty are more costly than cases in which life without parole was the maximum sentence. The Commission's Death Penalty Working Group reviewed recent studies of death-penalty costs in Utah and across the country and found that, while there was disagreement about the magnitude of the cost difference, there was consensus that the death penalty was more expensive than non-capital alternatives. The two Utah studies included in the report were a 2012 analysis that estimated the death penalty added $1.6 million over the life of each case, compared to life without parole, and a 2017 study of the last 20 years that found that Utah spent about $40 million on 165 death-eligible cases, which resulted in just two death sentences. The report also reviewed recent public opinion data on the death penalty from polls administered both nationally and in Utah. Noting what it called "somewhat discrepant" results from recent Utah polls depending upon the questions respondents were asked, the report concluded "based on national data ... and consistently lower support from younger respondents in the Utah polls" that "public support for the death penalty in Utah is declining over previous highs." The working group also examined Utah's aggravating circumstances, which make cases eligible for the death penalty, and the impact of the death penalty on victims' familiy members (whom it called "covictims"), but did not draw any conclusions on either. The report did note that victims in non-capital cases have a greater opportunity to be heard because their non-testimonial statements to the court are not limited by the rules of evidence that apply to testimony in capital cases. It quoted the academic literature on the impact of capital prosecutions, saying that the assumption that the death penalty provides closure is "unproven ... The process of dealing with murder and capital punishment is different for every covictim" and there is no guarantee that the death penalty will enhance recovery. While the commission did not make any policy recommendations based on its findings, Utah Conservatives Concerned About the Death Penalty said the report points to the need for a reconsideration of Utah's death penalty. "This report should give pause to anyone who thought that because capital punishment is so rarely used in Utah that the cost of maintaining a death penalty would be negligible," said Kevin Greene, the group's director. "We have been spending tons of money without much in return and we hope lawmakers will closely examine the report and agree that the death penalty is anything but fiscally conservative."

Pennsylvania Death-Row Prisoners File Lawsuit Challenging Automatic, Permanent Solitary Confinement

Five prisoners on death row in Pennsylvania have filed a class-action lawsuit challenging the Commonwealth's policy mandating solitary confinement for all condemned prisoners. The five named plaintiffs have been held in solitary confinement between 16 and 27 years each, kept in cells the size of a parking space, allowed out for a maximum of two hours per day for exercise, and denied human contact with family members during prison visits. The prisoners, represented by the American Civil Liberties Union, the Abolitionist Law Center, and three law firms, call these conditions "degrading" and "inhumane" and say the "policy and practice of automatically and permanently placing all death-sentenced prisoners in solitary confinement" is unconstitutionally cruel and unusual punishment. David Fathi, director of the ACLU National Prison Project, said Pennsylvania's death-row solitary confinment "until either the prisoner is executed, or dies of natural causes, or has his death sentence overturned is very different from the way solitary confinement is used for all other prisoners. For all other prisoners, you earn your way in and you earn your way out. You serve your punishment, and, if you behave, you can come back to the general population.” While many states still keep death-row prisoners in solitary confinement, that practice is changing. At least eight states have recently allowed death-row prisoners more time outside their cells, including Arizona, which changed its policy in 2017 in response to a similar lawsuit. According to the Pennsylvania suit, however, about 80% of those currently on death row have been held in solitary confinement for more than ten years. The United Nations' Standard Minimum Rules for the Treatment of Prisoners prohibits solitary confinement for periods longer than 15 days. One of the named plaintiffs in the lawsuit who has been held in solitary confinement for 21 years "describe[d] his experience as ‘psychological torture,’ where prisoners are ‘treated like animals’ and forced to ‘depend on everybody for everything.'" The lawsuit says "[h]e feels ‘trapped in [his] cell’ – and his ‘mind is like a popcorn machine.’” Pennsylvania's death-row conditions were challenged in 1980, but upheld by a federal court. “In the intervening time, there has been a sea change in the scientific understanding of solitary confinement and increasing recognition by the courts that this crosses constitutional boundaries when it is prolonged,” said Bret Grote of the Abolitionist Law Center. Just last year, a federal court ordered Pennsylvania to end its practice of keeping prisoners in solitary confinement even after their death sentences had been vacated, until they were formally resentenced or released. The retrial or resentencing process often took many years and, in some cases, took decades.

Ohio Governor Grants Reprieve to Raymond Tibbetts Following Juror’s Call for Mercy

Ohio Governor John Kasich (pictured, left) has granted a reprieve to Raymond Tibbetts (pictured, right), temporarily halting his execution to permit the Ohio Parole Board to consider a juror's plea for mercy in the case. In a February 8 letter to parole board Chairman Andre Imbrogno, the Governor requested that the Board convene a hearing to consider concerns about the case raised by Ross Geiger, one of the Tibbetts jurors. To facilitate that review, Kasich issued a temporary reprieve of Tibbetts’s execution, rescheduling it from February 13 to October 17, 2018, “unless further reprieve or clemency is granted.” On January 30, Kasich received a letter from Geiger alerting the Governor to Geiger’s “deep concerns about the trial and the way it transpired.” Geiger said the jury had never been given critical information from witnesses and institutional records that detailed Tibbetts's brutal upbringing, abandonment, and abuse in the foster care system and that “prosecutors got it wrong if not lied” to the jury about Tibbetts’s siblings having overcome that abuse to live normal lives. Geiger told the Governor “that the system was and seems to be today very flawed in this case.” He said, “if I had known all the facts, if the prosecutors had been honest and forthcoming about the horrors [Tibbetts] and his siblings experienced in the foster care system, and if we had an accurate understanding of the effects of Mr. Tibbetts’ severe drug and alcohol addiction and his improper opioid prescription, I would have voted for life without parole over death.” In the Governor’s letter to the Board, Kasich wrote: “Mr. Geiger claims that had he known then all of the information presented at Inmate Tibbetts’ 2017 clemency hearing, including the testimony of Inmate Tibbett’s sister, he would not have voted to recommend death back in 1997. Since this letter was received by me after the board's hearing and vote on Inmate Tibbetts’ case, I would like the board to review his case in light of this new information.” In a statement, Tibbetts’s attorney, Erin Barnhart, said that Geiger’s letter provided “incontrovertible proof that Mr. Tibbetts never would have ended up on death row had the system functioned properly” in his case. She praised Kasich for “act[ing] in the interests of fairness and justice” and said the Governor “has done our State a great service today by ensuring that careful consideration is given” to the new information from Geiger. Barnhart said the defense was “confident” that after considering Geiger's concerns, “the Board and the Governor will agree that clemency is appropriate to correct the failures in the legal process in this case.”

American Bar Association Resolution: Ban Death Penalty for Offenders Age 21 or Younger

On February 5, the American Bar Association (ABA) House of Delegates voted overwhelmingly to adopt a resolution calling for an end to the death penalty for offenders who were 21 or younger at the time of the crime. According to a report accompanying the resolution, "there is a growing medical consensus that key areas of the brain relevant to decision-making and judgment continue to develop into the early twenties." The ABA first opposed applying the death penalty against defendants younger than age 18 in a resolution adopted in 1983. In 1988, in Thompson v. Oklahoma, the U.S. Supreme Court cited that ABA resolution as part of the evidence that "it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense." Seventeen years later, in Roper v. Simmons (2005), the Court extended the prohibition against executing juveniles to include all defendants under age 18 when the offense occurred. The ABA's report says "[t]he ABA has been – and should continue to be – a leader in supporting developmentally appropriate and evidence-based solutions for the treatment of young people in our criminal justice system, including with respect to the imposition of the death penalty." It cites recent litigation challenging the death penalty for defendants under 21, including a ruling by a Kentucky trial court that said “the death penalty would be an unconstitutionally disproportionate punishment for crimes committed by individuals under 21 years of age." The report also highlights new research on the development of the adolescent brain and legislative trends affording juvenile status or similar protections to people in their early twenties. The report concludes, "this policy proposes a practical limitation based on age that is supported by science, tracks many other areas of our civil and criminal law, and will succeed in making the administration of the death penalty fairer and more proportional to both the crimes and the offenders."

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Nevada Prisoner Whose Case Confirmed Unconstitutionality of Mandatory Death Sentences Dies 

Raymond Wallace Shuman (pictured), whose case led to a 1987 U.S. Supreme Court decision affirming the unconstitutionality of mandatory death sentences, has died in a Nevada prison at age 83. Shuman, one of the longest-incarcerated prisoners in Nevada history, was serving a life sentence for a 1958 murder when he was convicted of killing a fellow prisoner in 1973. At that time, Nevada law mandated the death penalty for life-sentenced prisoners convicted of another first-degree murder. Then, in 1976, the U.S. Supreme Court issued a series of decisions upholding the constitutionality of capital punishment, but overturning mandatory death-penalty statutes in North Carolina and Louisiana. The 1976 cases established an individualized-sentencing requirement pursuant to which no one could be sentenced to death without first having the opportunity to present reasons to spare his or her life. Shortly thereafter, Nevada repealed its mandatory death sentencing law. Shuman, who was the first prisoner to face execution in Nevada after the 1976 rulings, challenged the constitutionality of his sentence as violating the Eighth and Fourteenth Amendments. The Nevada Supreme Court upheld Shuman's death sentence. Shuman's lawyers then presented the issue to the Nevada federal courts, which declared the state's mandatory capital-punishment statute unconstitutional. The prosecution appealed, arguing that the Supreme Court's 1976 decisions had left open the question of whether the death penalty could be mandated in certain extremely narrow classes of cases such as prison killings by life-sentenced prisoners. The U.S. Supreme Court agreed to review the case and, in a 6-3 ruling in Sumner v. Shuman, issued on June 22, 1987, the Court declared the statute unconstitutional. In his opinion for the Court, Justice Harry Blackmun wrote: "Although a sentencing authority may decide that a sanction less than death is not appropriate in a particular case, the fundamental respect for humanity underlying the Eighth Amendment requires that the defendant be able to present any relevant mitigating evidence that could justify a lesser sentence." That evidence included the nature of the defendant's prior conviction—Blackmun noted that Shuman had not been the triggerman in the 1958 murder—the defendant's background, life history, upbringing, and mental health, and any mitigating aspect of the circumstances of the offense. Shuman died around 2:25 p.m. on February 4 at the Carson Tahoe Regional Medical Center in Carson City, according to the Nevada Department of Corrections. 

New Mexico Bill to Restore Death Penalty Dies in Committee

The latest effort by death-penalty proponents to reinstate the death penalty in New Mexico has died in a House committee. House Bill 155, which would have brought back the death penalty for murders of children, police officers, and corrections employees, was tabled by the House Consumer and Public Affairs Committee by a 3-2 vote following a Saturday hearing on the bill on February 3, 2018. The bill, introduced by Albuquerque Rep. Monica C. Youngblood, was the fifth and, according to news reports, likely the final attempt under Gov. Susana Martinez to bring back the death penalty in the state. Youngblood has sponsored or co-sponsored each of those bills. In October 2017, death-penalty proponents had attempted to make the restoration of the death penalty an election issue, introducing the bill during a special legislative session that had been called to address the state's budget crisis and holding a pre-dawn hearing on the bill with no advance public notice on October 5. That bill passed on a party-line vote in the House before dying in the Democratic-controlled State Senate. Then, in the November elections, death-penalty supporters lost control of the House. Media accounts reported that this time “a long line of opponents waited for their three minutes to oppose the bill” during the committee's public hearing, while only four speakers—two of whom worked for the Governor—advocated for the bill. Department of Public Safety Secretary Scott Weaver and Secretary of Corrections David Jablonski each argued that the death penalty was an important tool for law enforcement. Five religious leaders, including a representative of the New Mexico Council of Catholic Bishops, spoke against the bill. Bennett Bauer, the state’s chief public defender, argued that the death penalty was not a deterrent and would be applied unequally throughout the state. The bill's sponsors asserted that the murders it subjected to capital sanctions were limited to the "worst of the worst" cases. However, the bill defined “children” as any victim under age 18—which would have been the broadest definition of "child victim" in any death-penalty statute in the United States. According to a DPIC review of recent FBI Uniform Crime Statistics, that definition would have encompassed 8%-9% of all murders. A DPIC study of FBI annual data on Law Enforcement Officers Killed & Assaulted over the past twenty-nine years also indicated that having the death penalty did not make law enforcement officers safer. Describing the study's findings, DPIC executive director Robert Dunham said, “When you look at the officer-victim rate, you see—as we did with murders generally—that officers are disproportionately killed in states that have the death penalty, as compared to states that don't.” The DPIC data showed that “Eight of the nine safest states for police officers were states that either did not have the death penalty at any time in the study period or … states that recently abolished capital punishment. By contrast, death penalty states comprised 22 of the 25 states with the highest rates of officers murdered in the line of duty.” New Mexico’s high rate of law enforcement deaths was the exception. But the data showed the state’s significantly higher-than-average rate of violence against police officers long predated its abolition of the death penalty in 2009.

Ohio Juror Asks Governor to Commute Death Sentence of Raymond Tibbetts

A juror who served on the capital murder trial of Raymond Tibbetts (pictured) and voted to sentence Tibbetts to death has written to Ohio Governor John Kasich asking Kasich to halt Tibbetts’s scheduled February 13 execution and commute his sentence to life without parole. In a January 30 letter to Governor Kasich, juror Ross Geiger—who, at the time of trial, described himself as a conservative Republican—said after learning the “truly terrible conditions” in which Tibbetts was brought up and the role the prescription of opioid painkillers played in the murder, he had “deep concerns about the trial and the way it transpired.” Geiger told the Governor “that the system was and seems to be today very flawed in this case” and that, “[b]ased on what I know today, I would not have recommended the death penalty.” Geiger became interested in the status of Tibbetts’s case after reading a recent news story about a challenge to Ohio’s method of execution. Researching on his own, he learned of Tibbetts’s pending execution and saw links to the clemency materials filed in the case. “Imagine my anger,” he wrote, “when I was able to review the clemency [materials]” and found “[p]ages of relevant information” that were never provided to the jury detailing “the abandonment, foster abuse, and reabandonment” that Tibbetts had experienced “and that it began before Tibbets was even two years old.” At trial, Tibbetts’s lawyer presented a psychiatrist who provided anecdotal testimony about Tibbetts’s background, but provided the jury with no social service records or family witnesses supporting that testimony. Prosecutors, Geiger said, “dismantled” the defense evidence by arguing that “lots of people with troubled childhoods do not become murderers [and] strongly impl[ying] that Tibbets [sic] siblings turned out fine.” Geiger said his mind was changed when he learned of defense counsel’s ineptitude, that the defense had never asked Tibbetts’s sister to testify, and what he called “[t]he revelation that the prosecutors got it wrong if not lied about Tibbets [sic] siblings having normal lives.” Geiger said he was shocked to learn about the brutal conditions in the foster home in which Tibbetts and his brothers lived, including being tied to a bed, thrown down stairs, having their fingers burned and beaten, and not being fed properly. "In fact," Gieger wrote in an op-ed in the Cleveland Plain Dearer, "of Mr. Tibbetts' four siblings, one committed suicide, one also spent time in prison, one is essentially homeless and unemployed, and only his sister is now doing well, despite having had a very turbulent younger life." Also supporting his plea for mercy, Geiger said that he and his fellow jurors did know that Tibbetts had a history of drug abuse and they were “not aware of the very real problem of prescribing opioids to people with addictive behaviors.” Tibbetts never received mental health treatment for his traumatic childhood and turned to alcohol and drugs to dull the pain. Although he repeatedly tried to combat his addiction, and for several years seemed to have his life under control, he then suffered an on-the-job back injury, for which he was prescribed an opioid painkiller, causing him to relapse into addiction. In the months leading up to the crime, Tibbetts attempted suicide and tried to get into a treatment program, but was turned down. Tibbetts killed two people after a crack-related argument. Geiger told Associated Press that, at the time of trial, he believed the law required him to vote for death based on the evidence the jury had heard and that he now feels "duped by the system." He said, “The state asked me to carry the responsibility for such a decision but withheld information from me that was important.” Ohio prosecutors oppose clemency for Tibbetts, saying that his mitigating evidence does not outweigh the circumstances of the crime. 

BOOK: Death-Row Exoneree Anthony Ray Hinton Publishes “Heart-Wrenching Yet Ultimately Hopeful” Memoir

Anthony Ray Hinton spent thirty years confined on Alabama's death row for murders he did not commit. Three years after his exoneration and release, he has published a memoir of his life, The Sun Does Shine: How I Found Life and Freedom on Death Row, that recounts stories from his childhood, the circumstances of his arrest, the travesty of his trial, how he survived and grew on death row, and how he won his freedom. The book, co-authored with Lara Love Hardin, has earned praise from Kirkus Review as an “urgent, emotional memoir from one of the longest-serving condemned death row inmates to be found innocent in America,” and "[a] heart-wrenching yet ultimately hopeful story about truth, justice, and the need for criminal justice reform." Nobel laureate Archbishop Desmond Tutu called Hinton's book "an amazing and heartwarming story [that] restores our faith in the inherent goodness of humanity." The memoir begins: “There’s no way to know the exact second your life changes forever.” He was arrested in 1985 and capitally charged in connection with the murder of two fast-food restaurant managers, even though he had been working in a locked warehouse 15 miles away when that crime was committed. The prosecutor, who had a documented history of racial bias, said he could tell Hinton was guilty and "evil" just by looking at him. Hinton's incompetent trial lawyer did not know and did not research the law, and erroneously believed the court would not provide funds to hire a qualified ballistics expert to rebut the state expert's unsupported claim that the bullets that killed the victims had been fired from Hinton's gun. Instead, his lawyer hired a visually impaired "expert" who did not know how to properly use a microscope, whose testimony was destroyed in front of the jury. Hinton was convicted and sentenced to death. Hinton speaks candidly about the psychological effect executions of other prisoners had on him as he feared execution for crimes he did not commit. Writing about the 1987 execution of Alabama prisoner Wayne Ritter, Hinton says, “I didn’t even realize they had executed [him] until I smelled his burned flesh.” Faced with this gruesome reality, Hinton realized, “I wasn’t ready to die. I wasn’t going to make it that easy on them.” In 2002, three top firearms examiners testified that the bullets could not be matched to Hinton's gun, and may not have come from a single gun at all. In 2014, the U.S. Supreme Court unanimously held that Hinton had been provided substandard representation and returned his case to the state courts for further proceedings. Prosecutors decided not to retry him after the state's new experts said they could not link the bullets to Hinton's gun. Hinton's lead attorney in the efforts to overturn his conviction and obtain his freedom was Bryan Stevenson, Executive Director of the Equal Justice Initiative and author of Just Mercy. In the forward to The Sun Does Shine, Stevenson writes that Hinton’s story “is situated amid racism, poverty, and an unreliable criminal justice system.” Hinton, he writes, "presents the narrative of a condemned man shaped by a painful and tortuous journey around the gates of death, who nonetheless remains hopeful, forgiving, and faithful." Hinton—the 152nd person exonerated from America's death rows since 1973—says he hopes his story will increase public awareness of the risks of executing the innocent and the irreparable failures of the nation's capital-punishment system. "The death penalty is broken," he writes, "and you are either part of the death squad or you are banging on the bars.”

Researcher: Racial Disparities Require Abolishing or Severely Restricting Death Penalty

Severely restricting the use of capital punishment or abolishing the death penalty altogether would help rectify some of the persistent racial disparities found in the United States' criminal justice system, according to Cassia Spohn (pictured), the Foundation Professor of Criminology and Director of the School of Criminology & Criminal Justice at Arizona State University. In a chapter on Race and Sentencing Disparity in the recently released Academy for Justice four-volume study, Reforming Criminal JusticeSpohn—the author of How Do Judges Decide? The Search for Fairness and Justice in Punishmentwrites that there is “clear and convincing evidence of racial disparity in the application of the death penalty” in the United States. Spohn's chapter traces the theoretical and methodological development in research into the relationship between race/ethnicity and sentencing over the past eight decades. She concludes that “reducing racial and ethnic disparities in sentencing and punishment requires something more than the passage of legislation designed to reduce incrementally the discretion of prosecutors, judges, and corrections officials." She recommends three major reforms "to reduce both the punitive bite of incarceration and the disparity in punishment": eliminating mandatory minimum sentences, abolishing the death penalty, and enacting Racial Justice Acts that would allow judges to consider whether racial bias played a role in the decision to seek or impose the death penalty and permit prisoners to challenge their sentences with statistical evidence showing a pattern of racial discrimination in sentencing. Spohn cites demographic evidence that, she says, convincingly demonstrates clear racial disparities in the administration of the death penalty in the United States. In 2016, 41.8% of the 2,905 prisoners under sentence of death in the United States and more than a third of those executed since 1977 (34.5%) were Black, although African Americans make up only 13% of the population. Similarly, she writes, those who murder White victims are sentenced to death and executed at disproportionately high rates: from 1977 through 2016, 75.6% of executed prisoners were convicted of killing White victims, as compared to 15.3% who were convicted of killing Black victims, and 6.9% convicted of killing Hispanics. The disparities, she found, were "particularly pronounced" in the use of the death penalty for rape, before the Supreme Court declared that practice unconstitutional in 1977. Between 1930 and 1972, 455 people were executed for rape; 405 of them (89%) were Black men and a number of states did not execute a single White man for rape during this period. Spohn argues that Racial Justice Acts could provide important safeguards in addressing discriminatory death-penalty practices. However, she writes, efforts to enact them have largely failed. The U.S. House of Representatives included a Racial Justice Act as part of the Omnibus Crime Bill of 1994, but it was removed by the Senate, where opponents "argued that it would effectively abolish the death penalty in the United States." Only Kentucky and North Carolina enacted state Racial Justice Acts, and the North Carolina legislature repealed its act in 2013 after four death row prisoners established that race had been a significant factor in their sentencing. Spohn concludes that "[t]he defeat of the Racial Justice Act in Congress and the failure of the issue to gain traction in the states, coupled with persuasive evidence of racial disparity in the application of the death penalty, suggest that the remedy for racial bias in the capital sentencing process is abolition of the death penalty."

Alabama Prosecutors Join Motion to Resentence Death-Row Prisoner With 48 IQ to Life Without Parole

Alabama prosecutors have agreed that Renard Marcel Daniel (pictured) should be resentenced to life without parole, after the state's mental health expert administered psychological tests to Daniel that showed the intellectually disabled man had an IQ of 48. Earlier in January, Daniel's lawyers—with the consent of the Alabama Attorney General's office—filed a motion in federal district court jointly asking the court to vacate Daniel's death sentence and return his case to state court for him to be resentenced. Daniel, who was convicted and sentenced to death in 2003, was represented at trial by lawyers who never spoke with him until three days before his trial. He argued in his state and federal appeals that his death sentence should be overturned because his lawyers had failed to investigate and present extensive evidence of his intellectual disability and horrifically traumatic childhood. The investigation by Daniel's appeal lawyers discovered that, when Daniel was only three years old, his mother killed his father with a shotgun while Daniel was in the home. They learned that before Daniel was even a teenager, his stepfather began sexually assaulting him and forced him to engage in sex acts on his siblings. His stepfather, they found, also regularly beat Daniel, one time so severely that he had to be hospitalized with a ruptured kidney. School records that trial counsel failed to obtain also showed that Daniel was placed in special education classes and suffered from severely deficient intellectual functioning from a young age, and was reading at only a second-grade level when he was thirteen. Yet despite being presented a truncated version of Daniel's traumatic childhood through brief testimony by his mother at trial, two jurors recommended that Daniel be sentenced to life. But Alabama law permitted the trial judge to impose a death sentence without a unanimous jury vote, and the court sentenced him to death. Alabama's state courts and the Alabama federal district court rejected Daniel's appeals without an evidentiary hearing. However, in May 2016, the U.S. Court of Appeals for the Eleventh Circuit, calling Daniel's childhood "nightmarish by any standard," ruled that the state courts had unreasonably denied his claims. It reversed the district court's decision dismissing Daniel's habeas petition and directed the court to conduct an evidentiary hearing on Daniel's penalty-stage ineffectiveness claim. In preparation for that hearing, the State's expert measured Daniel's IQ at 48, more than 20 IQ points below the accepted stardard for diagnosing intellectual disability. The U.S. Supreme Court ruled in 2002 in Atkins v. Virginia that subjecting people with intellectual disability to the death penalty violates the Eighth Amendment's prohibition against cruel and unusual punishments, and state prosecutors agreed that Daniel should be resentenced to life.

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